Milinevskyy (Migration)

[2017] AATA 807

Milinevskyy (Migration) [2017] AATA 807 (8 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Pavlo Milinevskyy

VISA APPLICANT:  Mr Pavlo Milinevskyi

CASE NUMBER:  1600937

DIBP REFERENCE(S):  OSF2015044382

MEMBER:Margie Bourke

DATE:8 May 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.211, cl.101.213 and cl.101.221 of Schedule 2 to the Regulations.

Statement made on 08 May 2017 at 4:42pm

CATCHWORDS

Migration – Child (Migrant)(Class AH) visa – Subclass 101(Child) – Wholly or substantially reliant on sponsor – Reliance greater than on any other person – Continued in full-time study

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 101.211, cl 101.213, cl 101.221, r 1.03, r 1.05A

CASES
Huynh v MIMA [2006] FCAFC 122

Sok v MIMIA [2005] FMCA 190

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 January 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2.    The visa applicant applied to the Department of Immigration for the visa on 25 August 2015. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.211 and cl.101.213.

4. The delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate was not satisfied the applicant had been undertaking a full-time course of study at an educational institution with in six months or reasonable time after completing the equivalent of year 12 in the Australian school system.

5.    The review applicant appeared before the tribunal on 8 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Ukrainian and English languages.

6.    The review applicant was represented in relation to the review by his registered migration agent.

7.    For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

8.    The main issues in this case are whether the visa applicant is the dependent child of the review applicant and whether the visa applicant meets the additional requirements for a child who has turned 18 at the time of application.

Dependent child criteria

9. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

Dependent child

1. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

2. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

3. The tribunal has considered the visa applicant extract translation of birth record, and is satisfied that the visa applicant is the son of the review applicant. Further the tribunal is satisfied that at the time of application the visa applicant was over the age of 18 but under the age of 25.

4. The tribunal has considered the review applicant’s certificate of Australian citizenship which was granted on 12 April 2010. The tribunal is satisfied that the visa applicant was the child of an Australian citizen at the time of application.

5. The tribunal has considered the oral and written evidence before it. At the time of application the tribunal is satisfied that the visa applicant was a student at the Ivano-Frankivsk Oil and Gas National Technical University in the Ukraine. The tribunal is satisfied that the visa applicant was a student at this university since September 2011, and therefore at the time of application had been a student at this university for nearly 4 years. The tribunal is satisfied that the visa applicant resided at the University in student accommodation during the study terms from September to June and went on practical placements in July and August. The tribunal is satisfied that the visa applicant returned to visit his mother on occasions.

6. The tribunal is satisfied that the visa applicant was financially reliant on his father the review applicant during the four years that he was at this university. For the purposes of considering whether the tribunal meets the requirements of r.1.05A, the tribunal has considered a substantial period of time prior to the time of application as being a period of 12 months prior to the time of application.

7. At the time of application the tribunal is satisfied that the visa applicant was not employed and his sole source of income was from his father, the review applicant. The tribunal is satisfied that the review applicant paid for the visa applicant’s tertiary fees, his accommodation expenses, and gave him access to a bank account to cover his living expenses including food, clothes and pocket money. At the time of application the tribunal is satisfied that the visa applicant was wholly or substantially reliant on the review applicant for financial support to meet his basic needs for food, clothing and shelter, and that for a substantial period immediately before the time of application, in excess of one year, the visa applicant had been wholly or substantially reliant on the review applicant for financial support to meet his basic needs for food clothing and shelter. Furthermore the tribunal is satisfied that the visa applicant’s reliance on the review applicant is greater than his reliance on any other person or source of support for financial support to meet his basic needs for food clothing and shelter. Therefore the tribunal is satisfied that the visa applicant is dependent upon his father the review applicant within the meaning of r.1.05A.

8. At the time of application the tribunal is satisfied that the visa applicant had turned 18 years, was dependent upon his father and was not engaged to be married and did not have a spouse or de facto partner. Therefore the tribunal is satisfied the time of application the visa applicant was a dependent child of the review applicant within the meaning of r.1.03.

9. For these reasons the tribunal is satisfied that the visa applicant meets the requirements of cl.101.211(1)(a) at the time of application, and continues to meet the requirements at the time of decision.

Age of Child

1. As stated above the tribunal is satisfied that the visa applicant had not turned 25 at the time of application and therefore the visa applicant meets the requirements of cl.101.211(1)(b) at the time of application.

Child-parent relationship

1. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl.101.211(1)(c).

2. As stated above the tribunal is satisfied that the visa applicant is the child of the review applicant who is an Australian citizen. The tribunal is satisfied that the visa applicant meets the requirements of cl.101.211(1)(c) at the time of application, and continues to meet these requirements at the time of decision.

3. For the reasons above, the criteria in cl.101.211 are met. The visa applicant does not continue to satisfy the criterion at the time of decision only because the visa applicant has turned 25 years, and therefore meets the requirements of cl.101.221(2)(a)(ii) at the time of decision.

4. The tribunal finds that the visa applicant meets the requirements of cl.101.211, at the time of application.

5. The tribunal finds that the visa applicant continues to meet the requirements of cl.101.211 at the time of decision and therefore meets the requirements of cl.101.221(2)(a).

Additional criteria for applicants over 18

1. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

Relationship status

1. At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.101.213(1)(a).

2. Based on the evidence before it the tribunal is satisfied that the visa applicant is not engaged to be married and does not have a spouse or de facto partner. The tribunal is satisfied the visa applicant has never had a spouse or de facto partner. For these reasons the tribunal is satisfied that the visa applicant meets the requirements of cl.101.213(1)(a) at the time of application, and at the time of decision.

Not engaged in full-time work

1. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b).

2. The tribunal has considered the evidence before it including the employment history submitted by the visa applicant. The tribunal accepts that the visa applicant did some work while studying in his last degree at high school in 2010 as a dispatch goods loader and continued some part-time work after completing school in June 2010 until October 2010. The tribunal also accepts the evidence of the review applicant that the visa applicant did some part-time work on a ‘casual on call basis’ for meat works. The tribunal is satisfied that the visa applicant would be called in when full-time workers did not attend for work, and that the worksite was 200 km from where the visa applicant was living at the time. The tribunal accepts that the employment was not sustainable, and was never full-time.

3. The tribunal is satisfied that the visa applicant has been in full-time study except for a period 2010 to 2011 whilst waiting for his place at University. The tribunal is satisfied the visa applicant was not in full-time work during this period. The tribunal is satisfied at the time of application in 2015 visa applicant was not engaged in full time work.  The tribunal is satisfied that the applicant is not engaged in full time work at the time of decision.

4. For these reasons the tribunal is satisfied that the visa applicant meets the requirements of cl.101.213(1)(b) at the time of application, and continues to meet the requirements at the time of decision.

Full-time study (or incapacitated for work)

1. At the time of application, the visa applicant must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl.101.213(1)(c). However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl.101.213(2). This requirement must continue to be met at the time of decision: cl.101.221(2)(b).

2. This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]. In determining what is a ‘reasonable time’ for this requirement, it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [28].

3. The tribunal has considered the submissions provided to the Department by the visa applicant’s representative and the submissions provided to the tribunal by the review applicant’s representative. The tribunal is satisfied that the visa applicant completed his primary school, lower secondary school and senior secondary school and was accepted as part of his secondary school into a vocational course which was issued as part of a complete secondary education certificate. The tribunal accepts that up a secondary school level III integrates a vocational training diploma which can lead to a standard that allows access into university level. The tribunal is satisfied that the visa applicant completed general secondary education school levels I – III and his junior specialist degree in accounting. The certificate confirming the visa applicant had completed all his secondary education was issued on 30 June 2010 when he was aged 19. The tribunal accepts that the visa applicant completed the equivalent of year 12 in the Australian school system in June 2010.

4. The tribunal is satisfied that in September 2011 the applicant commenced a bachelor degree in engineering which he completed in June 2015. The tribunal is satisfied that the visa applicant then commenced a master’s degree in engineering in August 2015 which he completed in February 2017. The tribunal is satisfied that the visa applicant has been accepted and enrolled for a doctorate in engineering to commence in September 2017. The tribunal is satisfied that the visa applicant has been undertaking a full-time course of study at an educational institution leading to the award of a professional trade or vocational qualification namely engineering since he commenced this course of study in September 2011. The tribunal puts weight on the fact that the evidence indicates that the visa applicant is a serious and gifted student who has achieved a masters degree and been accepted to study a doctorate of philosophy in engineering. The tribunal accepts that the visa applicant has achieved a high level of qualification in his chosen professional field of study. The tribunal considers that the visa applicant been undertaking and continuing to study during his bachelor degree, his masters degree and into his doctorate. The tribunal is satisfied that the visa applicant who has continued to participate in a full-time course of study, and continued to study and achieve higher qualifications in his field of study, meets the requirements of cl.101.213(c) because the visa applicant has continued to participate in a single course of full time study.

5. The tribunal has also considered whether the period between the visa applicant completing secondary school and commencing to undertake his full-time course of study was a reasonable time. The tribunal accepts that in the Ukraine there is a process that after the secondary school results are available, a student can apply to a university with his/her secondary school results seeking a university placement.  A university may send an invitation to a student to sit exams. After sitting university exams, a university will assess and then respond to the student and advise whether the student is offered a place at the university. The tribunal accepts that the visa applicant’s secondary school certificate was dated 30 June 2010, and the university year starts the first week of September, which limits the time for this process. The tribunal is satisfied that the visa applicant did not have sufficient time in 2010 to obtain his secondary school certificate, apply to the University, receive an invitation, undertake exams and obtain his place at university prior to the first week of September.

6. The tribunal accepts that usually secondary school certificates are often made available earlier than late June 2010. The tribunal accepts that the visa applicant continued to undertake tutoring until May 2011 in order to secure his place at university in 2011. The tribunal is satisfied that the visa applicant maintained a clear direction that he wished to study at university. The tribunal is satisfied that the visa applicant can rely on the evidence of his subsequent student record, namely that he completed a bachelor degree and a masters degree over a six year period. The tribunal has considered the two letters, one in English and one the translated by the interpreter at the hearing from the tutors who continued to provide paid instruction to the visa applicant in preparation for his university exams (one from October 2010 to May 2011, and the other from April 2010 to May 2011). The tribunal has considered the circumstances, including that the applicant was unable to commence his engineering course in September 2010, that he continued to undertake tuition over the period from June 2010 until May 2011, and that he continued studies in the anticipation that he would intended to be accepted and commence his full-time course of study in September 2011. In all the circumstances the tribunal is of the view the period prior to the visa applicant commencing his full-time course of study was a reasonable period. The tribunal is satisfied that the visa applicant has been undertaking a full-time course of study at educational institution with in a reasonable time after completing his secondary schooling.

7. For all the above reasons the tribunal is satisfied that the visa applicant has since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

8. Therefore the tribunal is satisfied that the visa applicant meets the requirements of cl.101.213(1)(c) at the time of application, and continues to meet these requirements at the time of decision.

9. For the reasons above, cl.101.213 is met at the time of application.

10. At the time of decision, cl.101.213 continues to be met. Accordingly, cl.101.221(2)(b) is met.

11. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

DECISION

1. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

   ·cl.101.211, cl.101.213 and cl.101.221 of Schedule 2 to the Regulations.

Margie Bourke
Member

ATTACHMENT – RELEVANT LAW

Migration Regulations 1994

1.03     Definitions

…

dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

(a)has not turned 18; or

(b)has turned 18 and:

(i)is dependent on that person; or

(ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

1.05A Dependent

(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:

(a)at the time when it is necessary to establish whether the first person is dependent on the other person:

(i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

(ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

…